93 Decision Citation: BVA 93-01972
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-05 527 ) DATE
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THE ISSUE
Whether there is new and material evidence to reopen a claim
of entitlement to service connection for a left eye disorder
including residuals of iritis other than on a basis of
exposure to radiation.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty from July l943 to March
l946.
This matter came before the Board on appeal from a rating
decision dated September 24, 1991, from the Chicago,
Illinois, Regional Office (hereinafter RO) confirming and
continuing a prior unappealed rating decision of April 1,
1983, denying service connection for left eye disorder
including chronic residuals of iritis. A notice of dis-
agreement was received on October 30, 1991. A statement
of the case was issued on November 19, 1991. A substantive
appeal was received on January 3, 1992, along with the
veteran's arguments raised for the first time that, while
stationed in Okinawa he received fallout from the Hiroshima
bomb causing all of his other problems, but there was no
reference to his left eye disorder. The case was received
at the Board on April 21, 1992, and docketed on April 24,
1992, at which time the case was forwarded to the veteran's
accredited representative, the Disabled American Veterans,
for additional written arguments which were added to the
record on June 30, 1992. The case is now ready for appellate
action. We note that in view of the fact that the veteran
has stated that he has other disabilities directly related
to his exposure to fallout from the bombing of Hiroshima,
such matter is referred to the RO for appropriate action.
REMAND
At the outset, we note that because the veteran's claim is
plausible, it is well grounded within the meaning of 38
U.S.C.A. § 5l07(a) (West l99l).
Following a preliminary review of the record, we note that
additional development of the evidence is needed in order
to assure adequacy of the record as well as to assist the
veteran in the development of his claim. It is contended
by the veteran, in essence, that he developed and was
treated for a chronic left eye disorder in service. He
maintains that the extensive treatment in service for his
left eye iritis included typhoid fever injections. At the
time of the prior RO's unappealed rating decision in l983,
the veteran indicated that he had been receiving ongoing
treatment for eye problems from a Dr. Giorioso of Chicago
Illinios, since l946. However, such treatment records were
never requested nor was the veteran afforded a special
Department of Veterans Affairs (VA) eye examination.
We point out that the United States Court of Veterans
Appeals has held that the duty to assist the veteran in
obtaining and developing facts and evidence to support his
claim includes obtaining pertinent outstanding medical
records as well as adequate VA examinations. Littke v.
Derwinski, l Vet.App. 90 (l990). This duty includes an
examination by a specialist when needed. Hyder v.
Derwinski, l Vet.App. 221 (l99l).
Under the circumstances of this case, we are of the opinion
that additional assistance is required. The case is
REMANDED to the RO for the following:
1. The RO should arrange to obtain
all records of treatment of the
veteran's left eye by Dr. Giorioso
dating from approximately l946
through at least March l983. Any
obtained data should be associated
with the veteran's claims folder
pending completion of all appellate
action.
2. The veteran should be afforded
an examination by a specialist in
ophthalmology in order to determine
the nature and extent of any identi-
fiable left eye disorder. The
examiner should comment on whether
an etiological relationship exists
between any current left eye
disoder, if found, and the left eye
symptoms present in the veteran's
service medical records. All indi-
cated special studies should be
undertaken and the claims folder
must be made available to the
examiner prior to consultation
with the veteran.
Following completion of the requested development, if the
benefit sought on appeal is not granted, the veteran and his
representative should be furnished a supplemental statement
of the case with regard to the additional development and
given an opportunity to respond. All appropriate due process
and appellate procedures should be undertaken.
(CONTINUED ON NEXT PAGE)
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
URSULA R. POWELL (Member temporarily absent)
LAWRENCE M. SULLIVAN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).